Sunday, March 18, 2007

Law - More on: Does Avowal of Fatherhood Impose an 'Equitable Paternity'

Last month the ILB had an entry on this issue, noting that there had cases in New York and Illinois where a "father" who has been paying child support later learns he is not the biological father, and now Kentucky was looking at the issue.

Today Andrew Wolfson of the Louisville Courier Journal has a long story on how the issue is being addressed in Kentucky. Some quotes:

For 11 years, Gary Denzik paid child support for the girl he loved and thought was his daughter. Then his ex-wife sent him a DNA test showing he wasn't the father after all.

"It killed me," said Denzik of Bowling Green. "It was like hearing your child had died in a car accident."

Denzik got a court order stopping his payments and sued his ex-wife for fraud. A jury later found she knew all along he wasn't the father -- that he was a so-called duped dad -- and awarded him $54,770 in damages, the amount he paid in child support the past five years.

The Kentucky Supreme Court narrowly upheld that verdict last June but left unanswered vexing questions about what makes a father a father: Is it the man who contributed only the sperm? Or the one who changed a child's diapers, taught her how to ride a bike and took her to soccer practice?

Courts around the country are struggling with those questions, including in two emotional cases from Jefferson County.

In one, Ren Hinshaw, 58, is fighting to retain joint custody of a child he helped raised and loves as his own, even after finding out the boy is not his biological child. "He is my son, and I am his dad," Hinshaw said in an e-mail to the newspaper.

The child's mother says Hinshaw should have no right to custody.

In another case, a biological father, James G. Rhoades Jr., 36, of Tallahassee, Fla, is battling to play a part in the life of a baby he fathered with a married woman from Louisville. The woman and her husband want to keep him out of the infant's life to preserve the sanctity of their family.

"I know this involves a family," Rhoades said, "but he is my family too."

More from the story:

"DNA has changed everything," said Denzik's lawyer, Kelly Thompson, who has since been elected to the state Court of Appeals.

At least seven states -- but not Kentucky -- have enacted laws allowing men to challenge paternity whenever deception is discovered, no matter the child's age, so that they no longer have to pay child support.

A second story by Wolfson today is headlined "Some states handle paternity with Uniform Parentage Act." Some quotes:

What is a father? Kentucky law on that question is a quagmire.

"The bottom line on the law … is that we just don't know," says Diana Skaggs, president of the Kentucky chapter of the American Academy of Matrimonial Attorneys.

But she and other family lawyers say there is a way out of the swamp: the Uniform Parentage Act.

A model law adopted in seven states, the act allows outsiders to a marriage to challenge paternity within two years of the birth of the child.

That gives so-called duped dads and other parents a reasonable time to resolve the status of a child without waiting so long that the consequences to the child could be traumatic. * * *

Indiana law allows a man to challenge paternity any time if he can show fraud, duress or "mistake of material fact," according to William Wilson, a South Bend lawyer who is the author of an Indiana family law blog. The father also can come forward if medical evidence proves the child can't be his.

The model act, drawn up by more than 300 lawyers, judges and law professors across the country, also includes other sections, including one that defines the rights of mothers who give birth through surrogates and in vitro fertilization.

It also provides for a registry for notifying fathers of children born out of wedlock who aren't actively involved in raising the child if there is a proceeding for termination of parental rights or adoption. (In Kentucky, a proposed putative father registry died in this year's session.) Drafted in 1973 and amended most recently in 2002, the act abolishes all legal distinctions between legitimate and illegitimate children and recommends procedures for establishing paternity.

The Uniform Parentage Act is endorsed by the American Bar Association, the National Child Support Enforcement Association, the American Academy of Matrimonial Lawyers and the National Association of Public Health Registrars.

The "Diana Skaggs" quoted in the story above is Diana Skaggs of the Divorce Law Journal, a Kentucky blog the ILB references frequently. See her posts today here and here.

As for the Indiana law, Indiana statutes re paternity are found at IC 31-14. However, IC 16-37-2, Certification of Births, contains a provision last amended in 2006, IC 16-37-2-2.1, concerning paternity affidavits, that provides in part:

(h) Notwithstanding any other law, a man who is a party to a paternity affidavit executed under this section may, within sixty (60) days of the date that a paternity affidavit is executed under this section, file an action in a court with jurisdiction over paternity to request an order for a genetic test.
(i) A paternity affidavit that is properly executed under this section may not be rescinded more than sixty (60) days after the paternity affidavit is executed unless a court:

(1) has determined that fraud, duress, or material mistake of fact existed in the execution of the paternity affidavit; and
(2) at the request of a man described in subsection (h), has ordered a genetic test, and the test indicates that the man is excluded as the father of the child.

(j) Unless good cause is shown, a court shall not suspend the legal responsibilities under subsection (g)(2)(A) of a party to the executed paternity affidavit during a challenge to the affidavit.
(k) The court may not set aside the paternity affidavit unless a genetic test ordered under subsection (h) or (i) excludes the person who executed the paternity affidavit as the child's biological father.
(l) If a paternity affidavit is not executed under subsection (b), the hospital where the birth occurs or a person in attendance at the birth shall inform the child's mother of services available for establishing paternity.
(m) Except as provided in this section, if a man has executed a paternity affidavit in accordance with this section, the executed paternity affidavit conclusively establishes the man as the legal father of a child without any further proceedings by a court.

IC 31-14-6-1.1 allows for geneic testing in paternity actions. IC 31-14-5-3 provides that generally "The mother, a man alleging to be the child's father, or the department or its agents must file a paternity action not later than two (2) years after the child is born".

A March 8, 2007 Indiana Court of Appeals decision involved a combined case of four separate putative fathers' requests for genetic testing to disestablish paternity under Indiana Code section 31-14-6-1.1. The opinion, In Re the Paternity of E.M.L.G., R.L.J., J.A.J. and N.A.H. , is summarized in this ILB entry. From the opinion:

All four of the fathers admittedly signed a paternity affidavit pursuant to this statute and did not rescind or set aside the affidavit within the sixty-day time frame provided for under Indiana Code section 16-37-2-2.1. Therefore, under the plain, unambiguous language of the statute, paternity was already established. * * *

Additionally, as we have previously noted, “[t]he Indiana Code has no provision for the filing of an action to disestablish paternity.” In re Paternity of H.J.B., 829 N.E.2d 157, 159 (Ind. Ct. App. 2005). Rather, the Indiana statutes governing paternity actions, found in Article 14 of Title 31 of the Indiana Code provide a means to establish paternity, not to disestablish it. Our General Assembly has clearly and unequivocally prescribed that it “favors the public policy of establishing paternity under [Article 14] of a child born out of wedlock.” Ind. Code § 31-14-1-1 (1998). Given this explicit language, when we look at Article 14 of Title 31 in its entirety, we conclude that the trial court improperly determined that Indiana Code section 31-14-6-1 provides a method by which legal fathers may disestablish paternity outside of the sixty-day time limitation, absent a claim of fraud, duress or material mistake of fact. Moreover, under these statutes, a trial court does not have the authority to treat child support proceedings as proceedings to disestablish paternity.

The soundness of the public policy underlying our decision today is illustrated by the facts of these four cases. If genetic testing were to disestablish paternity, then each child would be considered a “filius nullius,” which in Latin means a “son of nobody. [ILB - emphasis added]

None of the putative fathers here had alleged fraud, duress, or material mistake of fact. The Court cited a number of cases, but none under current statute law where the putative fathers had in fact successfully alleged fraud, duress, or material mistake of fact